Beyond the sensational rhetoric: 'Only Congress can disestablish, diminish or undo a reservation'

Jonodev Chaudhuri is ambassador for the Muscogee (Creek) Nation.

Indian Country Today

May 12, 2020

We're fighting to protect the people within our borders and we'll do everything we can to do so

Jonodev Chaudhuri is the ambassador for his tribe, the Muscogee (Creek) Nation. He shares the Nation's perspective on the case McGirt V. Oklahoma which was heard before the U.S. Supreme Court on Monday.

At issue is whether or not the Muscogee (Creek) Nation's reservation lands were ever "disestablished."

A ruling, in a related case Sharp V. Murphy, in the 10th Circuit Court of Appeals said no and that led to the McGirt case being taken to the nation's highest court.

Here are a few of Ambassador Chaudhuri's comments:

"Federal Indian law is based on the acknowledgement that tribes preexisted the United States."

"We've been part of American history from the get go."

"We've entered into a number of treaties since then, one of which is the treaty of 1866 which is central to the Oklahoma v. McGirt case, and what was established in exchange for a huge swaths of land, a boundary for our reservation that would never be disturbed."

"Essentially those cases say that Congress, and only Congress, can disestablish or diminish or undo a reservation. And so the law is clear unless Congress affirmatively acts to disestablish a reservation that reservation remains."

"From 1866 on, Congress has never acted to disestablish our reservation. So our reservation has been maintained according to the boundaries of the 1866 treaty."

"Creek Nation, through treaties as well as through, you know, the cessation of major swaths of land in exchange for undisturbed reservation boundaries, clearly has a reservation and that reservation has never been disestablished by Congress."

"Obviously the case itself most directly impacts Muskogee (Creek) Nation because we're dealing with jurisdiction over criminal defendants on Indian lands. But the issues involved in the case do potentially impact other tribal nations."

"Yesterday's Supreme court argument, there was some discussion about the impacts of allotment on reservation status. And I was, I was pleased to see that many of the justices pointed out the illusory nature of the argument that allotment somehow destroys or disestablishes a reservation."

"There's been a lot of sensational rhetoric from various commentators and at key times the state of Oklahoma itself about what this case is, that go far beyond what the case is really about."

"There's been rhetoric suggesting that this case is really about jurisdiction across the board, over Creek Nation and all of Eastern Oklahoma. There's been rhetoric that this case would result in thousands of defendants running wild."

"All of that is sensationalist and unnecessarily sensationalist."

"What this case is about, it's simply about the ability of the federal government as well as the Muskogee Creek Nation to adequately prosecute crimes committed by Native American citizens on tribal lands."

"The vast majority of people in Creek Nation boundaries as well as Oklahoma itself will be unaffected when the Supreme Court rules in favor Creek Nation."

"This case involves criminal jurisdiction to prosecute crimes committed by Indians as Indians are defined under the law, and under the law that means citizens recognize tribal nations."

"The jurisdictional landscape of Indian country is very complex. It's often we're referred to as a jurisdictional maze, and you have a variety of federal statutes that apply to different types of crimes committed by different types of people. The issue in this case simply involves the ability to prosecute Indians on Indian land."

"No government will have a greater interest in protecting citizens and non-citizens alike than a tribal nation who is trying to protect public safety, health and welfare within its territories. And so ensuring that tribes have the authority to actively, aggressively prosecute wrongdoing in Indian country is very, very important."

"Carving out a judicial exception would have damaging implications throughout Indian Country. It would disrupt longstanding federal principles and bring a lack of clarity in all dealings, whether it's commercial dealings or governmental dealings with tribal nations."

"If a tribe doesn't have a reservation, it doesn't have governmental authority to protect its citizens and other non-citizens within its borders. A government protects its people. A government protects its people through having jurisdiction over defined lands. If you diminish or destroy the word reservation, you diminish and destroy jurisdiction and diminish and destroy the ability of a government to prosecute crimes, to enact laws, to protect those vulnerable, to provide important programs and services to the most vulnerable."

"Congressman Tom Cole, the National Women's Indigenous Resource Center, submitted an Amicus Brief highlighting just what I spoke about, that if you do not allow a nation to protect its citizens through enforcement of its reservation boundaries, you remove the ability of tribes to enact domestic violence laws, child protection laws."

Also on the daily newscast, Washington Editor Jourdan Bennett-Begaye reports updated COVID-19 numbers in Indian Country.